Duran, Francisco Jr. ( 2015 )

PD-0429-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
October 19, 2015 Transmitted 10/15/2015 9:16:56 AM
Accepted 10/15/2015 12:32:58 PM
ABEL ACOSTA
CAUSE NO. PD-0429-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FRANCISCO DURAN,
Petitioner
v.
STATE OF TEXAS,
Respondent.
On Discretionary Review from the Court of Appeals
for the Thirteenth District of Texas
Court of Appeals Cause Number 13-12-00344-CR
STATE’S APPELLATE BRIEF
Luis V. Saenz
Cameron County District Attorney
René B. González
Assistant District Attorney
Consuelito Martínez
Associate Attorney
964 East Harrison Street
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
Attorneys for the State of Texas
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State’s response to Petitioner’s first ground for review. . . . . . . . . . . . . . . . . 4
Sub-issue 1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sub-issue 1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sub-issue 1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sub-issue 1(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-i-
INDEX OF AUTHORITIES
Cases
Asberry v. State,
813 S.W.2d 526 (Tex. App.--Dallas 1991, pet. ref’d). . . . . . . . . . . . . . . . . . 7
Ball v. United States,
470 U.S. 856 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Banks v. State,
708 S.W.2d 460 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Blount v. State,
257 S.W.3d 712 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . 8, 10, 12
Brooks v. State,
847 S.W.2d 247 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Duran v. State,
No. 13-12-00344-CR, 2013 WL 3378327
(Tex. App.--Corpus Christi July 3, 2013, pet. granted). . . . . . . . . . . . . . 2, 12
Ellison v. State,
425 S.W.3d 637 (Tex. App.--Houston [14th Dist.] 2014, no pet.).. . . . . . . 13
Ex Parte Grettenberg,
790 S.W.2d 613 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Herring v. State,
752 S.W.2d 169 (Tex. App.--Houston [1st Dist.] 1988),
remanded on other grounds, 758 S.W.2d 283 (Tex. Crim. App. 1988). . . . 7
Landers v. State,
957 S.W.2d 558 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-ii-
Polk v. State,
693 S.W.2d 391 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . 10, 12
Roy v. State,
76 S.W.3d 87 (Tex. App.--Houston [14th Dist.] 2002, no pet.).. . . . . . . . . 13
Ruben v. State,
645 S.W.2d 794 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . . . . 10, 12
Statutes
Tex. Penal Code § 12.42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Penal Code § 22.02(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Penal Code § 30.02(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Penal Code § 30.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rules
Tex. R. App. P. 38.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. App. P. 43.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-iii-
CAUSE NO. PD-0429-15
____________________________________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
____________________________________
FRANCISCO DURAN,
Petitioner
v.
STATE OF TEXAS,
Respondent
____________________________________
STATE’S APPELLATE BRIEF
____________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Respondent, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to
Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief
in the above-styled and -numbered cause of action, and in support thereof, would
show this Honorable Court as follows:
State’s Brief Page 1
STATEMENT OF THE FACTS
The Petitioner was indicted, in a multi-count indictment, with the offenses
of: count one - Burglary of a Habitation (while committing or attempting to
commit the underlying felony of Aggravated Assault), a first degree felony, Tex.
Penal Code § 30.02; count two - Aggravated Assault with a deadly weapon; and,
to both of these counts was added an enhancement count alleging a prior
conviction. (C.R. p. 15). The Petitioner was found Guilty of both Count I,
Burglary of a Habitation Committing Aggravated Assault, and Count II,
Aggravated Assault with a Deadly Weapon. (C.R. pp. 78-79). Prior to proceeding
to punishment by the same jury, the State abandoned Count II, due to Double
Jeopardy concerns regarding punishment. The jury found the allegation in the
enhancement count to be true and sentenced Petitioner to 25 years confinement on
Count I. (R.R. Vol. 5, p. 57). Thereafter, Petitioner sought review of his
conviction and the Court of Appeals affirmed, but modified the trial court’s
judgment. The Court of Appeals held that the judgment of the trial court should
be “modified to reflect that the State abandoned Count II before the punishment
phase and affirmatively states that punishment was assessed only on Count I.”
Duran v. State, No. 13-12-00344-CR, 2013 WL 3378327, at *1 (Tex. App.--
Corpus Christi July 3, 2013, pet. granted July 1, 2015). Additionally, the Court of
State’s Brief Page 2
Appeals concluded that the Defendant’s conviction by the jury of Burglary of a
Habitation with the underlying offense of Aggravated Assault sufficiently
supported the trial court’s judgment that a deadly weapon had been used. The
Court of Appeals deleted the “special issue” language from the original trial court
decision. This language was removed in order to reflect that the deadly weapon
finding entered by the jury resulted from the Defendant having been found guilty
as charged in the indictment.
SUMMARY OF ARGUMENT
This Court has granted review on Petitioner’s first ground, only, which
contains four sub-issues. In the first sub-issue, Petitioner complains that the Court
of Appeals erred in modifying the trial court’s judgment, such that a second degree
felony burglary offense was subsequently “modified” to a first degree Burglary of
a Habitation. The State responds by asserting that said modification did not occur
and that Petitioner was properly punished for the burglary as a first degree felony.
In his second sub-issue, Petitioner complains that the Court of Appeals erred in
modifying the trial court’s judgment by eliminating the words “special issue” in
the deadly weapon finding. The State responds by asserting that the Court of
Appeals did not err in its modification of the original judgment by removing the
State’s Brief Page 3
“special issue” from the deadly weapon language. In sub-issues 1(c) and 1(d),
Petitioner complains that the Court of Appeals erred by failing to vacate the
jeopardy-barred conviction from the trial court’s original judgment, and as a
consequence he alleges he suffered a violation of his Fifth Amendment protection
against Double Jeopardy. The State responds that such a violation has not taken
place.
ARGUMENT AND AUTHORITIES
State’s Response to Petitioner’s First Ground for Review
In his Petition for Discretionary Review, Petitioner states his first Ground
for Review as follows:
1. The Court of Appeals erred in affirming and modifying the
judgment of conviction and in particular:
a. by modifying the jury’s conviction from a second degree
felony of burglary to a first degree felony burglary by
retaining an indictment count of aggravated assault with
a deadly weapon that was abandoned by the prosecution;
b. by modifying the judgment to delete the words “Special
Issue” in the deadly weapon finding so that the State’s
abandonment of Count II became a legal shoe that fit
their modification(s);
c. by failing to vacate the double jeopardy barred
conviction(s) as requested and agreed between defense
State’s Brief Page 4
counsel and the State Appellate Counsel, to wit, the
aggravated assault with a deadly weapon;
d. by failing to recognize the plain error of petitioner being
deprived of a fair trial in violation of the Fifth
Amendment’s double jeopardy clause.
This Honorable Court granted review on this first ground only. Petitioner’s
brief in support of his p.d.r., restates this ground for review and then argues issues
which appear to be beyond the scope of this ground for review, which include
attacking the actions of the trial court in modifying the judgment herein, and
arguing that his sentence was illegal. For this reason, the State will confine its
responsive brief to the ground listed in the petition for discretionary review, and
will ignore the arguments in Petitioner’s Brief which exceed the scope of the
review granted.
Sub-issue 1(a)
In sub-issue 1(a), Petitioner argues that the Court of Appeals erred in
affirming and modifying the judgment of conviction by modifying the jury’s
conviction from a second degree felony of burglary to a first degree felony
burglary by retaining an indictment count of aggravated assault with a deadly
weapon that was abandoned by the prosecution. In response to sub-issue 1(a), the
State would note that Petitioner was charged in Count I of the indictment as
State’s Brief Page 5
follows:
Francisco Duran, Jr… did then and there intentionally or knows lying
enter a habitation, without the effective consent of Gonzalo Gonzalez,
the owner thereof, and attempted to commit or committed the felony
offense of Aggravated Assault.
(C.R. 15). The offense in count I, therefore, as charged, is a first degree felony
under section 30.02(d) of the Penal Code, because it alleges that the premises are a
habitation, and further, it alleges that Petitioner entered the habitation and he
committed or attempted to commit a felony other than felony theft, i.e., aggravated
assault. See Tex. Penal Code § 30.02(d). The State’s abandonment of Count II
had no effect on the allegations of Count I.
Nevertheless, even if this Court were to determine that the State’s
abandonment of the Aggravated Assault charge in Count II would have somehow
affected the allegations in Count I and would have reduced the burglary count
from a first degree felony to a second degree felony, the State responds by
asserting that the indictment also contained an enhancement count, which the jury
found to be true. (R.R. Vol. 5, p. 57). Therefore, even if Petitioner is correct in
his argument that the allegation in Count I was a second degree felony (a point
which the State vehemently denies), the burglary was nevertheless correctly
punished as a first degree because of the enhancement count. See Tex. Penal Code
State’s Brief Page 6
§ 12.42.
Sub-issue 1(b)
In sub-issue 1(b), Petitioner complains that the Court of Appeal erred by
modifying the judgment to delete the words “Special Issue” in the deadly weapon
finding so that the State’s abandonment of Count II became a legal shoe that fit
their modification(s). In response to issue 1(b), the State responds by noting that
an appellate court has authority to “modify the trial court’s judgment and affirm it
as modified.” See Tex. R. App. P. 43.2(b). “Appellate Courts have frequently
reformed judgments to correct improper recitations or omissions relating to
punishment.” Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.--Dallas 1991,
pet. ref’d); see also Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986)
(cumulated sentences). Moreover, judgments have been reformed to include a
jury’s affirmative finding of the use of a deadly weapon. Herring v. State, 752
S.W.2d 169, 175 (Tex. App.--Houston [1st Dist.] 1988), remanded on other
grounds, 758 S.W.2d 283 (Tex. Crim. App. 1988). Additionally, “the failure of
the trial court to make the necessary entry as to an affirmative finding is not an
error of judicial reasoning ‘but rather an error of a clerical nature.’” Asberry, 813
S.W.2d at 530. As such the appellate court, in this case, was well within its
authority to modify the lower court’s judgment under the rules of Texas Appellate
State’s Brief Page 7
Procedure 43.2(b), and did not err as the Petitioner asserts.
Further, the State would show that, the modification of the judgment herein
by the Court of Appeals was necessary to reflect the jury’s finding of a deadly
weapon. Based on the language in the indictment, Petitioner had notice that the
State would seek an affirmative finding of a Deadly Weapon. This Court stated in
Blount v. State:
Aggravated assault may be committed in only two ways: (1) by “caus
[ing] serious bodily injury” or (2) by “us[ing] or exhibit[ing] a deadly
weapon during the commission of the assault.” Tex. Penal Code §
22.02(a). Each of these involves the use of a deadly weapon. The
first way necessarily implies the use of a deadly weapon, which is
“anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” Id., § 1.07(a)(17)(B). The
second way specifies the use of a deadly weapon. Therefore an
allegation that a defendant committed aggravated assault gives him
notice that the deadly nature of the weapon alleged in the indictment
would be an issue at trial and that the State may seek an affirmative
finding on the use of the weapon.
Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008). Count II of the
indictment herein clearly states that the underlying felony alleged, was Aggravated
Assault. The evidence presented to the jury was of a single criminal episode,
wherein the jury found Defendant guilty under Count II (aggravated assault with a
deadly weapon), and Count I (burglary of a habitation-with the underlying felony
being the identical aggravated assault). Therefore, the Petitioner had notice of the
State’s Brief Page 8
State’s intent to seek an affirmative finding of a deadly weapon as to both counts.
In Ex parte Grettenberg, 790 S.W.2d 613 (Tex. Crim. App. 1990), this
Court confronted an analogous situation. In that case, the defendant was charged
with two crimes under a single indictment: the first count charged Grettenberg
with burglary of a habitation with the intent to commit aggravated assault, and the
second count charged him with attempted capital murder and alleged use of a
deadly weapon. Both counts arose from the same criminal episode; however, only
the second count specifically alleged use of a deadly weapon. The State ultimately
abandoned the second count, and the defendant was convicted of burglary with
intent to commit aggravated assault. In addition, the jury found that a deadly
weapon had been used during the crime. This Court held that the original
indictment gave the defendant adequate notice that the State would seek an
affirmative finding of use or exhibition of a deadly weapon, even though that part
of the indictment had been voluntarily abandoned by the State. As this Court
stated, “when the theories of prosecution contained in the counts are so
interrelated as under the facts of this case, the election by the State to pursue one
of the counts in preference to the other will not vitiate the notice given in the
indictment in its original form.” Id. at 614; see also Brooks v. State, 847 S.W.2d
247, 248-49 (Tex. Crim. App. 1993).
State’s Brief Page 9
The jury in the present case heard evidence of the deadly weapon and found
Petitioner guilty of burglary of a habitation (with the underlying felony being
aggravated assault) in count I and of aggravated assault with a deadly weapon in
count II. In both instances that jury found the Petitioner guilty “as charged in the
indictment.” (C.R. pp. 78-79). Therefore, under this Court’s decisions in Blount
and Polk, the language of the indictment specifically placed the issue before the
trier of fact, and an affirmative finding was de facto made when the Petitioner was
found guilty “as charged in the indictment.” See Blount, 257 S.W.3d at 714
(holding that an allegation that a defendant committed aggravated assault
necessarily includes an allegation of a deadly weapon, upon which the State may
seek an affirmative finding on the use of the weapon); see also Polk v. State, 693
S.W.2d 391, 394 (Tex. Crim. App. 1985) (citing Ruben v. State, 645 S.W.2d 794
(Tex. Crim. App. 1983)) (holding that when an allegation specifically places the
deadly weapon issue before the trier of fact, then an affirmative finding is de facto
made when the defendant is found guilty “as charged in the indictment”).
Further, because the deadly weapon allegation was contained in the
indictment, the matter was left for the jury to decide. Where an indictment leaves
the issue before the jury, then an affirmative finding is automatically made when
the jury finds the defendant guilty as charged in the indictment. See Polk, 693
State’s Brief Page 10
S.W.2d at 394 (holding that when an affirmative finding is made by the trier of
fact, it then becomes the mandatory duty of the trial court to enter a separate and
specific deadly weapon finding in the judgment).
Accordingly, the modification of the judgment herein by the Court of
Appeals was both proper, under the law and the facts herein, and authorized under
the Rules of Appellate Procedure.
Sub-issue 1(c)
In sub-issue 1(c), Petitioner complains that the Court of Appeals erred by
failing to vacate the double jeopardy barred conviction(s) as requested and agreed
between defense counsel and the State Appellate Counsel, to wit, the aggravated
assault with a deadly weapon. In response to issue 1(c), the State responds by
noting that the Court of Appeals herein did modify the judgment herein to reflect
that the State did abandon Count II, the charge of aggravated assault with a deadly
weapon. Specifically, the opinion of the Court of Appeals states:
We conclude that the judgment should be modified to reflect that the
State abandoned Count II before the punishment phase and to
affirmatively state that punishment was assessed only on Count I.
* * * * *
We modify the judgment...to reflect that the State abandoned Count II
before the punishment phase and to reflect that punishment was
assessed only on Count I... . We affirm the judgment as modified.
State’s Brief Page 11
Duran, 2013 WL 3378327 at *4, *10. Accordingly, the prohibition against
multiple punishments for a single offense has not been violated.
For further response, if any need there be, the State notes that in its brief to
the Court of Appeals, the State did suggest that vacating the second count from the
judgment would be appropriate.1 Therefore, should this Court deem it necessary,
the State does not oppose a further correction of the trial court’s judgment, to
vacate the conviction as to count II herein.
Sub-issue 1(d)
In sub-issue 1(d), Petitioner complains that the Court of Appeals erred by
failing to recognize the plain error of petitioner being deprived of a fair trial in
violation of the Fifth Amendment’s double jeopardy clause. In response to sub-
issue 1(d), the State responds by noting that a defendant is not deprived a fair trial
merely by being prosecuted for two offenses that are the same for double jeopardy
1
The State further noted in its brief on direct appeal that, while the trial court’s judgment
should not reflect the Petitioner’s conviction for aggravated assault, the jury’s finding that
Petitioner used or exhibited a deadly weapon is nevertheless proper (State’s Brief on direct
appeal, pp. 32-34). The State now re-urges this position, as noted above, and asserts that even
should this Court amend the judgment herein by vacating the conviction for aggravated assault,
the facts and applicable law nevertheless supports the affirmance of the jury’s deadly weapon
finding. See Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008) (holding that an
allegation that a defendant committed aggravated assault necessarily includes an allegation of a
deadly weapon, upon which the State may seek an affirmative finding on the use of the weapon);
see also Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (citing Ruben v. State, 645
S.W.2d 794 (Tex. Crim. App. 1983)) (holding that when an allegation specifically places the
deadly weapon issue before the trier of fact, then an affirmative finding is de facto made when
the defendant is found guilty “as charged in the indictment”).
State’s Brief Page 12
purposes; rather, when a defendant’s Fifth Amendment is violated his or her sole
remedy is to retain the conviction with the most serious punishment and vacate
any remaining convictions that are the same for double jeopardy purposes. Ball v.
United States, 470 U.S. 856, 864 (1985); Landers v. State, 957 S.W.2d 558, 559
(Tex. Crim. App. 1997). A successful double jeopardy challenge will not require a
retrial or remand to the trial court. Ellison v. State, 425 S.W.3d 637, 643 (Tex.
App.--Houston [14th Dist.] 2014, no pet.) (citing Roy v. State, 76 S.W.3d 87, 94
(Tex. App.--Houston [14th Dist.] 2002, no pet.). Accordingly, the sole remedy
which Petitioner is entitled to, is to have his conviction for Count II vacated.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that this Court will overrule Petitioner’s ground for review, and affirm both the
judgment of conviction and the sentence herein.
State’s Brief Page 13
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
By: /s/ René B. González
René B. González
Assistant District Attorney
State Bar No. 08131380
rgonzalez1@co.cameron.tx.us
Consuelito Martínez
Associate Attorney
Temporary State Bar No. 24095835
consuelito.martinez@co.cameron.tx.us
Attorneys for the State of Texas
State’s Brief Page 14
CERTIFICATE OF COMPLIANCE
I certify that this document contains 3,051 words (excluding the cover, table
of contents and table of authorities). The body text is in 14 point font, and the
footnote text is in 12 point font.
/s/ René B. González
René B. González
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s appellate Brief was served upon
Mr. Joseph Moreno, Attorney at Law, 23409 El Paso Drive, Harlingen, Texas
78552, j_moreno_02@yahoo.com on the 15th day of October, 2015.
/s/ René B. González
René B. González
State’s Brief Page 15